Jim Porter: Must store owners have defibrillators?

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TRUCKEE, Calif. - We all know that defibrillators, automatic external defibrillators (AEDs), often save lives. Fortunately, they are becoming more and more common in both public and private places.

Here's the question of the day: Do commercial store owners have a legal obligation to have a functioning defibrillator on the premises?

Sudden Cardiac Arrest in Target

Mary Ann Verdugo, age 49, was shopping at a Target store in Pico Rivera, California with her mother and brother when she suffered sudden cardiac arrest and collapsed. Paramedics arrived several minutes later, but Verdugo was dead and could not be resuscitated.

Target did not have an AED in its store, but it sold AEDs on line for $1,200.

Verdugo's family sued in federal court asking the court to rule that retail stores in California, at least large retail stores, should be required to have defibrillators available for customers.

AEDs

Nearly 300,000 Americans suffer from sudden cardiac arrest every year, and only eight percent survive. According to statistics, 30 percent of those who experience cardiac arrest could be saved if an AED were used immediately as it helps to restart the heart's electrical impulses. Another study found from 50 percent to 70 percent. Unlike a myocardial infarction (heart attack), sudden cardiac arrest often strikes with no prior symptoms and can strike an otherwise healthy heart.

700 people die of sudden cardiac arrest in the United States every day.

Special Relationship with Customers

There is under California law a "special relationship" between business owners and their invitees, which creates a duty to provide "assistance to ... customers who become ill or need medical attention." Does that extend to a duty to maintain an AED in the store? Both sides in this case agreed that California codes do not require an AED, but the Verdugo family claimed that California common law somehow requires big box stores to have an AED on site.

Frankly, I didn't see a showing in the Court of Appeal's Opinion that there is such California common law, but on the other hand, why wouldn't a big box store have at least one AED readily available? Come on. Especially given the impressive statistics of how AEDs work on sudden cardiac arrest victims. But even if the store had a defibrillator, would Verdugo have survived?

Property owners who have AEDs are immune from liability if the AED is checked every 30 days and at least one employee is trained in its use. Users of AEDs are immune as well.

Referral to Supreme Court

In what seems to me a federal copout, the federal Court of Appeals punted this case to the California Supreme Court saying the state court system should decide this important issue, not a federal court. So, no clear ruling. The California Supreme Court may or may not accept the handoff.

Dissent

The dissenting justice, citing the impressive statistics of the effectiveness of AEDs on sudden cardiac arrest victims, ruled (or would have ruled) against Target.

Here's the close of the Dissenting Opinion: "Because of the reasonable foreseeability that a Pico Rivera Target customer could suffer sudden cardiac arrest, the insignificant burden of acquiring an AED and training employees on how to use the simple device, and the virtual certainty of death if an AED is not used within minutes of the onset of sudden cardiac arrest, the Pico Rivera Target had a duty to have available an AED in its store."

J. P.'s Take

Whether the California Supreme Court accepts this case is not yet known, but one way or another we will soon have California law on whether store owners must have AEDs. I struggle with a court mandating an AED, especially if such a requirement were forced on all commercial businesses, not just big box stores.

On what legal basis could a court determine that a big box must have an AED but a smaller business owner may not? This is a matter best left to the Legislature.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He may be reached at porter@portersimon.com or at the firm's web site www.portersimon.com.